Opinion
5:20-CV-0937 (GTS/TWD)
05-18-2021
SAYVION D. BLOUNT, Plaintiff, v. COUNTY OF ONONDAGA, et al., Defendants.
APPEARANCES: SAYVION D. BLOUNT Plaintiff, pro se DIN 20-A-1115 Fishkill Correctional Facility
APPEARANCES:
SAYVION D. BLOUNT
Plaintiff, pro se
DIN 20-A-1115
Fishkill Correctional Facility
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, United States Magistrate Judge
I. INTRODUCTION
On October 19, 2020, this Court granted Sayvion D. Blount's (“Plaintiff”) motion to proceed in forma pauperis and recommended his Complaint brought pursuant to 28 U.S.C. § 1983, against the City of Syracuse, the County of Onondaga, the Hon. Mary Anne Doherty, Timothy Roulan, Joseph Centra, Janelle N. Ecker, Hon. Thomas J. Miller, Assistant District Attorney (“ADA”) Colin Lynch, Ian Duquette, and Andrew Torrance be sua sponte dismissed in its entirety pursuant to 28 U.S.C. § 1915(e); and that Plaintiff's claims against Judge Doherty, Judge Miller, and ADA Lynch be dismissed with prejudice based on the doctrine of absolute immunity; and that Plaintiff's remaining Section 1983 claims be dismissed without prejudice and with leave to amend for failure to state a claim. (Dkt. No. 8.) It was further recommended that the District Court decline to exercise supplemental jurisdiction over any state law claims. Id. Plaintiff filed objections to the Report- Recommendation and an “Amendment to the Complaint.” (Dkt No. 13, 14.)
By Decision and Order entered March 15, 2021, the Honorable Glenn T. Suddaby, Chief United States District Judge, accepted and adopted the Report-Recommendation in its entirety, and Plaintiff's “Amendment to the Complaint” was rejected and stricken from the docket. (Dkt. No. 15.) Plaintiff was afforded thirty (30) days to file an Amended Complaint that cured the pleading defects identified in that Decision and Order (and the Report-Recommendation). Id. It was further ordered that failure to do so would result in Plaintiff's Section 1983 claims being sua sponte dismissed with prejudice (and his state law claims would be dismissed without prejudice to refiling in state court within the governing time period). Id.
Plaintiff's timely-filed Amended Complaint (Dkt. No. 16) has been referred to this Court for review of its pleading sufficiency pursuant to 28 U.S.C. § 1915(e). (Dkt. No. 15.) For the reasons set forth below, the Court recommends the Amended Complaint (Dkt. No. 16) be sua sponte dismissed in its entirety and without further leave to amend for failure to state a claim. II. SUFFICIENCY OF THE AMENDED COMPLAINT
A. Standard of Review
28 U.S.C. § 1915(e) directs that when a plaintiff proceeds in forma pauperis, “the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
To determine whether an action is frivolous, a court must look to see whether the complaint “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989).
Likewise, under 28 U.S.C. § 1915A, a court must review any “complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity” and must “identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint . . . is frivolous, malicious, or fails to state a claim upon which relief may be granted; or . . . seeks monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A.
To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is “plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, “does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation.” Id. In determining whether a complaint states a claim upon which relief may be granted, “the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
A pro se litigant's pleadings are held to a less strict standard than attorney drafted pleadings. See Fed. Express Corp. v. Holowecki, 552 U.S. 389, 402 (2008) (“Even in the formal litigation context, pro se litigants are held to a lesser pleading standard than other parties.”). Because plaintiff is proceeding pro se, the Court construes her pleadings “to raise the strongest arguments that they suggest.” See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (per curiam) (internal quotation marks omitted); Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). However, this “does not exempt a [pro se litigant] from compliance with relevant rules of procedural and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). Moreover, a court should not dismiss a pro se complaint “without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). However, an opportunity to amend is not required where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
B. Analysis
Plaintiff brings this action pursuant to 42 U.S.C. § 1983. (Dkt. No. 16.) To state a claim under Section 1983, a plaintiff must show that the challenged conduct was committed by a person acting under color of state law and that such conduct “deprived [him] of rights, privileges, or immunities secured by the Constitution or laws of the United States.” Cornejo v. Bell, 592 F.3d 121, 127 (2d Cir. 2010). “Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993).
After carefully reviewing the Amended Complaint, the Court finds Plaintiff has failed to cure the pleading defects identified in Judge Suddaby's Decision and Order (and the ReportRecommendation). As a threshold issue, the Amended Complaint fails to comply with Rules 8 and 10 of the Federal Rules of Civil Procedure and Chief Judge Suddaby's Decision & Order. Plaintiff was previously advised that “[a] party not named in the caption of the complaint is not a party to the action.” (Dkt. No. 8 at 5 n.4.) See also Bloodywone v. Bellnier, No. 9:18-CV-0615 (GTS/DJS), 2018 WL 10550308, at 5 n.8 (N.D.N.Y. Oct. 17, 2018) (citing Abbas v. United States, No. 10-CV-0141, 2014 WL 3858398, at *2 (W.D.N.Y. Aug. 1, 2014) (the failure to name a party in the caption makes it “infeasible for the Court to determine which of the individual officers mentioned in the body of the complaint should be deemed to be defendants to which claims”)); Whitley v. Krinser, No. 06-CV-0575, 2007 WL 2375814, at *1 (W.D.N.Y. Aug. 15, 2007) (“If people are not also named in the caption of the [ ] complaint, they will not be defendants in the case.”). The Amended Complaint lacks a caption and a demand for relief. Plaintiff was “respectfully reminded that such an Amended Complaint must be a complete pleading that does not incorporate by reference his original Complaint.” (Dkt. No. 15 at 8, emphasis added.) He was “also respectfully advised that he should use numbered paragraphs to separate each alleged occurrence as required by Fed.R.Civ.P. 10(b)[, ]” yet largely failed to do so. See id. Construed liberally, the Amended Complaint lists six “claims.” (Dkt. No. 16 at 67.) The Court addresses each in turn.
Page references to documents identified by docket number refer to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office. Unless otherwise indicated, excerpts from the record are reproduced exactly as they appear in the original and errors in spelling, punctuation, and grammar have not been corrected.
1. Judge Doherty
In the First Claim, Plaintiff alleges Judge Doherty “acted outside her judicial capacity violating [his] 8th and 14th Amendment right to due process in a criminal proceeding[.]” (Dkt. No. 16 at 8.) As set forth above, Plaintiff's Section 1983 claims against Judge Doherty were “sua sponte DISMISSED with prejudice based on absolute immunity and failure to state a claim pursuant to 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A[.]” (Dkt. No. 15 at 8.) Consequently, any such claims against Judge Doherty are not properly before the Court.
In any event, the factual allegations of the Amended Complaint, like the original Complaint, plausibly suggest that, at the time of the events giving rise to Plaintiff's claims, Judge Doherty was acting within the scope of her judicial capacity (however much he disagrees with her actions) and, therefore, she is entitled to absolute immunity. (See Dkt. No. 16 at 1, 2, 8.) Therefore, to the extent that Plaintiff's Amended Complaint attempts to bring Section 1983 claims against Judge Doherty, the Court again recommends dismissal with prejudice based on absolute immunity and failure to state a claim pursuant to 28 U.S.C. § 1915(e) and 28 U.S.C. § 1915A.
2. Ian Duquette and Andrew Torrance
In his Second Claim, Plaintiff alleges Ian Duquette and Andrew Torrance, identified as private citizens and not members of the Syracuse Police Department, “acted under color of state law” and violated his constitutional rights “when acting in tandem with the Syracuse Police voluntarily assaulted [Plaintiff] in an attempt to vigilantly conduct a citizen's arrest” causing Plaintiff's physical injuries, emotional distress, and mental anguish. (Dkt. No. 16 at 1, 3, 8.) He states he has a “right to be free from assault” and a right to “equal protection.” Id.
Plaintiff notes that either Duquette or Torrance is a member of the U.S. Army Reserve Corp. (Dkt. No. 16 at 8.)
As noted, to state a claim under Section 1983, the plaintiff must allege both that the defendant has violated plaintiff's rights under either the Constitution or laws of the United States and that the defendant acted “under color of state law.” See Rae v. City of Suffolk, 693 F.Supp.2d 217, 223 (E.D.N.Y. 2010). Private conduct is beyond the reach of Section 1983 “no matter how discriminatory or wrongful” that conduct may be. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). To establish state action, Plaintiff must show that the person who caused his constitutional deprivation ‘“may fairly be said to be a state actor.'” Grogan v. Blooming Grove Volunteer Ambulance Corps, 768 F.3d 259, 264 (2d Cir. 2014) (quoting Cranley v. Nat'l Life Ins. Co. of Vt., 318 F.3d 105, 111 (2d Cir. 2003)). State action requires a showing that “the ‘allegedly unconstitutional conduct is fairly attributable to the State.'” Id. (quoting Sullivan, 526 U.S. at 50). When a plaintiff contends that a private actor violated his rights, the plaintiff proves state action “by demonstrating that ‘there is such a close nexus between the State and the challenged action' that seemingly private behavior ‘may be fairly treated as that of the State itself.'” Id. (quoting Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001)).
Here, Plaintiff claims that on Septmeber 22, 2019, these two private individuals “believing that [Plaintiff] had just committed a crime based off the information given to them by another person, vigilantly came and found [him] at the Gas Station, reporting that a crime had been committed, then came into the Gas Station and assaulted [Plaintiff] with closed fist punching, tackling [him] to the floor and continued to punch and kick [him] and obstruct [his] breathing until the Syracuse Police arrived to the scene.” (Dkt. No. 16 at 3.) However, none of Plaintiff's allegations transform the alleged actions taken by Duquette and Torrance into “state action.” The allegations of assault occurred prior to the arrival of the Syracuse Police and “it is well-established that private citizens may effectuate arrests without becoming state actors.” Forbes v. City of N.Y., No. 05-CV-7331 (NRM), 2008 WL 3539936, at *5 (S.D.N.Y. Aug. 12, 2008) (collecting cases); see also Walters v. Suffolk Cty., No. 09-CV-556 (MKB), 2014 WL 940734, at *8 (E.D.N.Y. Mar. 11, 2014) (collecting cases in support of the proposition that “[d]etaining a supposed criminal while police respond does not expose a private actor to § 1983 liability”).
Therefore, the Court recommends dismissing Plaintiff's Section 1983 claims brought against Duquette and Torrance for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). Because Plaintiff has already been given the opportunity to amend, the Court recommends such dismissal be with prejudice. (See Dkt. No. 15 at 8-9.)
3. Syracuse Police Department
In his Third Claim, Plaintiff alleges the Syracuse Police Department violated his rights under the constitutional rights and denied him “equal protection.” (Dkt. No. 16 at 8.) However, under New York law, departments that are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and, therefore, cannot sue or be sued.” Davis v. Lynbrook Police Dep't, 224 F.Supp.2d 463, 477 (E.D.N.Y. 2002) (dismissing Secition 1983 claim brought against the Lynbrook Police Department); see also La Grande v. Town of Bethlehem Police Dep't, No. 1:08-CV-0738 (LEK/DRH), 2009 WL 2868231, at *2 (N.D.N.Y. Sept. 1, 2009) (“Since the Bethlehem Police Department cannot be sued pursuant to 42 U.S.C. § 1983, [the plaintiff's] [c]omplaint is dismissed as against the Town of Bethlehem Police Department.”); Jenkins v. Liadka, No. 5:10-CV-1223 (GTS/DEP), 2012 WL 4052286, at *5 (N.D.N.Y. Sept. 13, 2012) (“Because the Syracuse Police Department is merely an administrative arm of the City of Syracuse, it is not a proper defendant.”).
Therefore, the Court recommends dismissing Plaintiff's Section 1983 claims brought against the Syracuse Police Department for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). Because better pleading would not cure this defect, the Court recommends such dismissal be with prejudice.
4. City of Syracuse
In his Fourth Claim, Plaintiff alleges the “City of Syracuse is liable for the deprivation of his constitutional rights due to policies or customs that ha[ve] resulted in the inadequate training, supervision, and luring of the Syracuse police who responded to the scene and call on September 22, 2019, at the Syracuse Gas Station on or near Almond Street and Erie Blvd. at approximately 12:00 p.m. in which [Plaintiff] was physically assaulted and obstructed of breathing inside the Gas Station by Ian Duquette and Andrew Torrance resulting in [his] multiple injuries amounting to deliberate indifference to [his] constitutional rights.” Id. Plaintiff claims the City of Syracuse is liable for the actions taken by the Syracuse Police Department and individual officers responding to the scene. Id. at 7.
Pursuant to the standard for establishing municipal liability laid out in Monell v. Dep't of Soc. Servs. of the City of New York, 436 U.S. 658 (1978), in order to set forth a cognizable claim for municipal liability under Section 1983, a plaintiff must plead and prove that a deprivation of his constitutional rights “was caused by a governmental custom, policy, or usage of the municipality.” Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell, 436 U.S. 658); see also Vippolis v. Vill. of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985) (“The plaintiff must first prove the existence of a municipal policy or custom in order to show that the municipality took some action that caused his injuries beyond merely employing the misbehaving officer.”). A municipality may be liable for deprivation of constitutional rights under Section 1983 for policies or customs resulting in inadequate training, supervision, or hiring when the failure to train, supervise, or hire amounts to deliberate indifference to the rights of those with whom municipal employees will come into contact. See City of Canton, Ohio v. Harris, 489 U.S. 378, 388-89 (1989). A plaintiff must also establish a causal connection - an affirmative link-between the policy and the deprivation of his constitutional rights. Oklahoma v. Tuttle, 471 U.S. 808, 823 (1985) (plurality opinion). Indeed, municipalities may only be held liable when the municipality itself deprives an individual of a constitutional right; it “may not be held liable on a theory of respondeat superior.” Jeffes v. Barnes, 208 F.3d 49, 56 (2d Cir. 2000).
Critically, “a prerequisite to municipal liability under Monell is an underlying constitutional violation by a state actor.” Henry-Lee v. City of New York, 746 F.Supp.2d 546, 567 (S.D.N.Y. 2010). As the Second Circuit has noted, “Monell does not provide a separate cause of action for the failure by the government to train its employees; it extends liability to a municipal organization where that organization's failure to train, or the policies or customs that it has sanctioned, led to an independent constitutional violation.” Segal v. City of New York, 459 F.3d 207, 219 (2d Cir. 2006); see also id. (noting that once a “district court properly [finds] no underlying constitutional violation, its decision not to address the municipal defendants' liability under Monell [is] entirely correct”).
Here, although Plaintiff asserts that the allegedly wrongful acts or omissions on the part of unidentified Syracuse police officers are attributable to a municipal policy or custom, nothing in his Amended Complaint suggests facts in support of such a conclusion. See Nielsen v. City of Rochester, 58 F.Supp.3d 268, 277 (W.D.N.Y. 2014) (conclusory allegations which merely recite the elements for stating a Monell claim are insufficient to state a claim for municipal liability) (citing, inter alia, Genovese v. Town of Southhampton, 92 F.Supp.2d 8, 25 (E.D.N.Y. 2013)). “Custom denotes persistent and widespread practices, and thus proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell[.]” Ahern v. City of Syracuse, 411 F.Supp.2d 132, 139 (N.D.N.Y. 2006) (punctuation and citation omitted). As the Second Circuit has made clear, “isolated acts . . . by non-policymaking municipal employees are generally not sufficient to demonstrate a municipal custom, policy, or usage that would justify municipal liability.” Jones v. Town of East Haven, 691 F.3d 72, 81 (2d Cir. 2012) (citing Villante v. Dep't of Corr., 786 F.2d 516, 519 (2d Cir. 1986)); see also Henderson v. Town of Greenwich, 317 Fed.Appx. 46, 47 (2d Cir. 2009) (“Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell.”) (quoting Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985)).
Therefore, the Court recommends dismissal of Plaintiff's Section 1983 claims against the City of Syracuse for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). Because Plaintiff has already been given the opportunity to amend, the Court recommends such dismissal be with prejudice. (See Dkt. No. 15 at 8-9.)
5. Onondaga County Sheriff's Department
In his “Fifth Claim, ” Plaintiff alleges the Onondaga County Sheriff's Department “was deliberately indifferent to [his] medical needs amounting to unconstitutional conditions of confinement when on 9/22/19 [Plaintiff] came to the Justice Center visibly injured due to being assaulted where [he] again was assaulted by a sheriff's deputy by use of excessive force, then denied medical attention.” Id. at 7.
However, as discussed in Part II.B.3 above, under New York law, departments that are merely administrative arms of a municipality do not have a legal identity separate and apart from the municipality and, therefore, cannot sue or be sued. See also Baker v. Willett, 42 F.Supp.2d 192, 198 (N.D.N.Y. 1999) (dismissing claims against county sheriff's department) (citations omitted); see also Lukes v. Nassau Cty. Jail, No. 12-CV-1139, 2012 WL 1965663, at *2 (E.D.N.Y. May 29, 2012) (dismissing claims against the Nassau County Jail because it “is an administrative arm of Nassau County, without a legal identity separate and apart from the County”).
Therefore, the Court recommends that Plaintiff's Section 1983 against the Onondaga County Sheriff's Department be dismissed with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b).
6. County of Onondaga
In his “Sixth Claim, ” Plaintiff alleges the County of Onondaga is “liable for the actions and inactions taken due to no supervision, improper training and customs and actions taken by the Onondaga County's Sheriff's deputies and medial staff members on 9-22-19 when [he] entered the Justice Center injured from assault denying [him] medical attention and after being assaulted again by use of excessive force by a deputy deprived [him] medical attention again.” (Dkt. No. 16 at 6.) However, for reasons discussed in Part II.B.4 above, the Court finds Plaintiff's claims against the County of Onondaga fail to state a claim upon which relief may be granted. Although Plaintiff invokes terms used in Monell, such as “custom” and “practice, ” he fails to allege any facts tending to show that the County of Onondaga caused any claimed constitutional violation. The absence of any facts supporting an unconstitutional policy, practice, or custom by the County of Onondaga, or a failure to supervise or train, precludes Monell liability.
Therefore, the Court recommends dismissal of Plaintiff's Section 1983 claims against the County of Onondaga for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b). Because Plaintiff has already been given the opportunity to amend, the Court recommends such dismissal be with prejudice. (See Dkt. No. 15 at 8-9.)
7. State Law Claims
A federal court may, in its discretion, exercise supplemental jurisdiction over a state law claim, but only to the extent it is accompanied by a claim over which the court has original jurisdiction. See 28 U.S.C. § 1367 (“[E]xcept [in limited circumstances], in any civil action of which the district courts have original jurisdiction, the district court shall have supplemental jurisdiction over all other claims that are so related[.]”).
In light of the above recommendations, the Court also recommends declining to exercise supplemental jurisdiction over any purported state law claims. See Kolari v. New York Presbyterian Hosp., 455 F.3d 118, 120 (2d Cir. 2006) (district court has discretion to decline to exercise supplemental jurisdiction over state law claims because all claims over which the federal court has jurisdiction have been dismissed).
ACCORDINGLY, it is hereby
RECOMMENDED that Plaintiff's Amended Complaint (Dkt. No. 16) be sua sponte DISMISSED IN ITS ENTIRETY AND WITHOUT FURTHER LEAVE TO AMEND for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B) and 28 U.S.C. § 1915A(b); and it is further
RECOMMENDED that Plaintiff's Section 1983 claims be sua sponte DISMISSED WITH PREJUDICE and that his state law claims be DISMISSED WITHOUT PREJUDICE to refiling in state court within the governing time period; and it is further
ORDERED that the Clerk provide Plaintiff with a copy of this Order and Report Recommendation, along with copies of the unpublished decisions cited herein in accordance with the Second Circuit's decision in Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a).
If you are proceeding pro se and are served with this Order and Report Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed. R. Civ. 6(a)(1)(C).